Beda Kanta Phukan vs State of Assam

S.N. Phukan, J.—This revision petition is directed against the judgment and order the learned Sessions Judge, Sibsagar in Criminal Appeal No. 33 (2)/85. By the said judgment the learned Sessions Judge dismissed the appeal and affirmed the conviction of learned Additional Chief Judicial Magistrate in G.R. Case No. 614 of 1978 by which the accused Petitioner was convicted u/s 304A/279 IPC and sentenced him to R.I for 2 months u/s 304A IPC and 15 days R.I. u/s 279 IPC.

The prosecution case is that on 2.4.78 the accused was driving flat car No. ASE 2972 on Namati Nazira Road and knocked down one Naranath Borgohain at about 12 noon. Prosecution has alleged that the accused was driving the car rashly and negligently. Subsequently the injured died. As many as 6 witnesses were examined on behalf of the prosecution.

The plea of the defence was total denial and two witnesses, namely. D. Ws 1 and 2 were examined. It may be stated that these two witnesses were examined by the Investigating Officer and shown as Witnesses in the charge sheet and for the reasons best known to the prosecution these two witnesses were not examined.

To bring home the charge the prosecution has to prove that the oar was driven rashly and negligently. In this case P. Ws 1 and 2 were alleged eye witnesses, they have stated that the car was driven at a very high speed and on the basis of this evidence the conviction was made. According to these two witnesses the deceased after ho was knocked down went under the car. But such a statement was not made before the Investigating Officer. Therefore, the above statement of the two witnesses P. Ws. 1 and 2 that the deceased after being knocked down went inside the car was an exeggeration and was not rightly rejected (sic) this version by the learned trial Court.

D. Ws. 1 and 2 have stated that the deceased was walking by the side of the road and suddenly came to middle of the road. He could not be saved by the accused inspite of best efforts including of horn. According to these witnesses the victim was hit by the bumper of the car and the occurrence did not took place as stated by P. Ws 1 and 2.

To bring home a charge u/s 279 IPC, prosecution has to prove not only the fact that the accused was driving the vehicle on a public way, but has also to prove that such driving was so rash negligent as to be endanger human life or to likely to cause hurt injury to any other person. Criminal negligence or criminal rashness an important element. Mere fact that the accused was driving vehicle at high speed may not attract the provision of this Section prosecution has to prove something more. Apart from the (sic) of the above ingredients in the case in hand, the learned court low erred in law in not treating the evidence of D. Ws. It is (sic) settled principle of law that merely because a person is examination on behalf of the accused, his evidence should not be taken light and in fact his evidence stands on the same footing as that of (sic) witness for the prosecution. I, therefore, hold that the learned courts below erred in law as stated above.

Mr. Sahewalla has drawn my attention that the learned trial court applied the principle of Res ipsa loquitur which according the learned Counsel cannot be applied in view of the law laid do (sic) by the Apex Court in Syad Akbar Vs. State of Karnataka, The contention of the learned Counsel has considerable force.

Mr. Goswami has drawn my attention to the sketch map which was prepared by the I.O. in support of his contention, it is a clear case of rash and negligent driving as the deceased was knocked (sic) while he was standing on the extreme left side of the road. The fact was not put to the I.O. and that apart on perusal of the Index of the sketch map, I find that it was recorded that a COW (SIC) sleeping on the middle of the road and the accused driver blow horn and tried to save the cow and as a result he hit the deceased this fact is accepted, it will go contrary to the prosecution and further it would show that is was case of pure and simple accident

Another illegality which I find is the examination of (sic) person u/s 313- Code of Criminal Procedure Only one question was (sic) to the accused and even in that question it was not put to him the he was driving the vehicle in rash and negligent manner. The other circumstances appearing against the accused person were not put to the accused and in ray opinion this has caused prejudice to the (sic) which is an illegality which can be taken into consideration this revisional court.

Situated thus, I find merit in the present petition and (sic) ordingly it is allowed by setting aside the impugned judgment and consequently the conviction and sentence imposed on the and persons

In the result, the petition is allowed, rule is made absolute. The and person is discharged from the liability of bail bond.